The defendant, who is the assistant general freight agent of the Southern Pacific Company, was, in March, 1891, indicted by the grand jury of Linn county for a violation of section 4 of “An act to regulate the transportation of passengers and freight by railroad companies,” commonly known as the “Hoult law,” approved February 20,1885, which reads as follows: “Section 4. That it shall be unlawful for any person engaged in the transportation of property as prescribed in the first section of this act, to charge or receive any greater compensation for a similar amount or kind of property for carrying, receiving, storing, forwarding, or handling the same for a shorter than a longer distance in the same direction.” During the pend-ency of the prosecution, and before the trial in the court below, the act of February 20, 1891, (2 Hill’s Code, 2 ed. 1967,) entitled “An act to increase the power and further define the duties of the board of railroad commissioners in respect to the management, operation, and control of railroads, and the transportation of persons and property within the state of Oregon,” went into effect. Whereupon the defendant moved to quash the indictment and for his discharge, upon the ground that the act of 1891 operated as a repeal by implication of the provisions of the act of 1885, under which he was indicted. The motion was overruled, and the trial resulted in a verdict and judgment against the defendant, from which this appeal is taken.
The record contains numerous assignments of error, but the main question we shall consider is, whether the provisions of the act of 1885, upon which this prosecution is founded, was repealed by the act of 1891; for it is admitted by the attorney-general that if such is the case, the prosecution fails, as there is no saving clause in the latter act. It is not claimed that any of .the provisions of the act of
This act is m effect a maximum rate law. It was only designed, as its title clearly implies, to regulate the transportation of -freight and passengers by railway companies, and subject to its provisions, the power to fix freights and fares remained with the carrier. The carrier was at liberty to fix the charges for carrying both passengers and freight over its line at any rate it might deem advisable; subject only to the limitation that for passengers, the fare should not exceed four' cents per mile; and for freight, the rate should not exceed that charged by the carrier on the first day of January, 1885, and not increased oftener than once every six months; and no discrimination should be made in favor of or against persons or places, by rebate, drawback, combination; or pooling agreements or arrangements, or by charging? more for a 'shorter than a longer haul in the same direction. Thus matters stood until the session of 1887, when “An act creating and establishing a board of railroad commissioners, and to define and regulate its powers and duties, and to fix the compensation of its members,” was passed. (Laws, 1887, 30.) This law provided for two commissioners to be appointed by the governor, who should have only-supervisory powers over railways, and with no authority to in any manner regulate or fix freights or fares, for carrying either freight or passengers. (Railroad Com. v. Railroad Co. 17 Or. 65.)
In 1889 ( Laws, 1889, 2) the commission act was amended by increasing the number of commissioners to three, and providing that they should be chosen by the legislative assembly biennially, but no attempt was made to invest the commission with power or authority to fix freights or fares. The power to fix freights and fares still rem
It may be stated as a general rule that repeals by implication are not favored; and a subsequent affirmative statute does not repeal a prior one unless there is a conflict between the two which is direct and irreconcilable. But where such conflict does exist, and the two statutes cannot be reconciled under the rules of statutory construction, the subsequent statute, being the later expression of the legislature on the subject, must be considered in force, and to operate as a
If the act of 1891 simply authorized and empowered the commission to revise and establish freight rates and fares without any affirmative declaration as to what elements and results it should consider in so doing, it might be said that it would be controlled by the maximum limit of the Hoult law, and the two acts not be in conflict. But when the legislature declared in affirmative terms that the commission, in revising or establishing rates, “ should take into consideration the character and nature of the services to be performed, and the entire business of such railroad, together with its entire earnings from passenger and other traffic, and so revise such tariff as to allow a fair and just return on the value of such railroad, its appurtenances and equipments,” it clearly made it the duty of the commission, in fixing rates, to disregard the limitations of the Hoult law, if necessary in order to allow such “just and fair return.”
The only limitation upon the commission in revising or establishing rates, is that such rates shall be a reasonable and just compensation for the services rendered, and be just as between the public and the carrier In this respect it is evident the conflict between the two acts is irreconcilable, and both cannot stand. The one fixes the maximum limit at a certain figure, whether such rates afford reasonable and just compensation for the services rendered
And again, under the Hoult law, the defendant, as assistant general freight agent, had the l’ight to make such rates for the transportation of freight and passengers as he pleased, subject only to the limitations of the act. If he charged or received a greater rate or compensation for a similar amount or kind of property for carrying the same for a shorter than a longer haul m the same direction, he became liable to indictment and punishment for a violation of section 4 of that law, because the rates were under his supervision and control, and such charge was his voluntary act; but as the law now stands, his power to make rates has been entirely withdrawn and vested in the agents and officers of the state. He may, if he so desire, furnish the schedule; but whether he does or not, the making of the rates and their validity is with the commission and the courts; and when so made, and declared reasonable by the courts, the carrier has no option but to put them into effect, and is liable to a prescribed penalty for not doing so. Suppose the defendant should submit to the commission a tariff schedule, showing a greater rate for carrying a similar grade of freight from Millersburg to East Portland than from Albany to the same point of destination, as is claimed he charged in this case, and the commission, in the exercise of the power and authority given it by the act of 1891, should determine that, in view of the competition at Albany by water transportation, or some other sufficient reason, such rates did not constitute unjust discrimination, and should approve the schedule, and the carrier put it into effect, as by law it is compelled
' In order to avoid any misconception of the effect of this decision, it is proper to say that in this case we only hold that so much of the act of 1885 as loft to the carrier the right to fix freights and fares subject to certain limitations, and the declaration of that act, that charging more for a shorter than a longer haul is unjust discrimination against places, is repealed by the act of 1891. The provisions of the act of 1885, making unlawful rebate, draw’back, combinations, and pooling arrangements or agreements, are not involved in this case; and it is unnecessary for us to consider the effect of subsequent legislation thereon.
It was suggested at the argument that the act of 1891 is void because the requirements of the constitution were not complied with in its enactment. From the journals of the legislature it appears that the act arose out of house bill No. 97, introduced by Mr. Miller of Josephine. It
Conceding, therefore, that the provisions of the constitution, that every bill shall be read section by section on its final passage, and the vote taken by yeas and nays, require that every amendment to a bill shall be so read and the vote thus taken, which may be well doubted, (Miller v. State, 3 Ohio St. 475,) we must assume, in the absence of an affirmative showing to the contrary, that the constitutional requirements were observed, and hold that the act under consideration was constitutionally passed.
Nor is there any merit in the objection that the act of 1891 purports to -be an amendment of existing laws upon the subject, without setting out the sections as amended, as ¡required by section 22, article 4, of the constitution. This act was not designed as an amendment of any existing law, Ibut to increase the powers and further define the duties of the railroad commission, and as supplementary to the then existing legislation on the subject, and therefore does not come within the provisions of the constitution above cited. David v. Portland Water Co. 14 Or. 98; Suth. Stat. Const. 135.)
The judgment of the court below is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.